ILLINOIS v. KRULL

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Argument of Michael J. Angarola

Chief Justice Rehnquist: We will hear argument first this morning in No. 85-608, Illinois versus Krull.

Mr. Angarola, you may proceed whenever you are ready.

Mr. Angarola: Mr. Chief Justice, and may it please the Court, the issue in this case is whether the good faith exception to the exclusionary rule should be applied to a warrantless search conducted pursuant to a presumptively valid statute later declared unconstitutional.

Petitioners' position is that the Illinois Supreme Court erred when it required suppression of evidence seized in the search of a junkyard, thus rejecting the state's position that the exclusionary rule should not be applied where the search was made in good faith reliance of a presumptively valid statute.

The Illinois statute is a comprehensive scheme regulating used auto parts and auto metal dealers.

That statute required that books and records be kept on the premises and that the premises of the yard, the junkyard, be available for inspection in order to determine the accuracy of the books and records of those kinds of businesses.

The Illinois statute has been in existence in one form or another since 1933.

The Illinois Supreme Court has not previously ruled on the statute but it has ruled on recordkeeping aspects of the statute.

The facts in this case are as follows.

On July 5th, 1981, a Chicago police officer went to the Action Iron and Metal Junkyard and there observed a towtruck bringing cars onto the premises and leaving without cars.

He entered the premises and identified himself to respondent Lucas.

He asked Lucas if the yard was open for business.

The Chicago police officer asked to see the books and records, and he asked to see the license of the premises.

Lucas said he could not locate them.

Lucas showed McNally, however, a yellow pad of paper that contained a list of approximately five vehicles.

The Chicago police officer asked if he could go onto the yard.

Lucas said go right ahead.

The Chicago police officer then recorded while on the yard vehicle identification numbers of cars on the yard.

He checked with the computer in the squad car and determined that three of the vehicles that he observed in the yard were listed as stolen.

Those three vehicles were taken from the lot.

A fourth vehicle which did not have any vehicle identification number on it was also taken from the lot.

Thus the police officer's conduct was objectively reasonable in regard to his time of entry, the manner of entry, the fact that he identified himself, the fact that he asked if the business was open for business, the fact that he asked to see the records, and the fact that he asked to go out onto the premises of the yard.

On July 6th, the day after the search in this matter, 1981, in a case unrelated to the instant search, the United States District Court held the Illinois statute unconstitutional because it did not sufficiently limit the discretion of police officers who had the authority to enforce the statute.

On September 25th, 1981, respondents filed a motion to suppress which was sustained.

The Illinois Supreme Court affirmed the trial court's holding.

In affirming the trial court the Illinois Supreme Court erroneously applied the Court's case of Michigan versus DeFillippo cited at 443 US, a 1979 case.

DeFillippo is distinguishable from the instant case because the DeFillippo case involved the question of whether a Detroit ordinance later found unconstitutional, could form the basis of probable cause to arrest.

Secondly--

Unknown Speaker: May I just ask a question about the Illinois Supreme Court's action in this case?

Is it not correct that by the time the case reached the Illinois Supreme Court Judge Schader's order in the Federal Court had already been vacated and set aside, and so the Supreme Court of Illinois had to make its own determination of the the constitutionality of the statute.

It didn't just rely on the Federal decision, but it was in this very case that the statute was held unconstitutional.

Mr. Angarola: --The Illinois Supreme Court did not rule on the constitutionality of the statute.

Unknown Speaker: It didn't?

Mr. Angarola: No.

Unknown Speaker: In its opinion in this case?

Mr. Angarola: That's correct.

Unknown Speaker: What was it doing at Pages 10 to 17 of its opinion?

Mr. Angarola: My apologies, Your Honor.

Of course it did rule on the constitutionality of the statute.

It found the statute unconstitutional.

My apology.

Our position is that that is insignificant.

I should not say insignificant.

But it is not controlling as to our position here in Court.

Unknown Speaker: But it is controlling that the decision that caused this statute to be held unconstitutional was made by the Illinois Supreme Court in this very case.

Mr. Angarola: Yes, sir.

Unknown Speaker: So the question, what you are really asking us to do is to say not to apply the exclusionary rule in the case in which the constitutionality of the statute itself is challenged and found invalid.

Mr. Angarola: Yes, sir.

The search that occurred in the DeFillippo case was a search incident to an arrest, and the search presently before the Court involves a warrantless entry onto the premises of a closely regulated business.

The exclusionary rule is meant to further a logical public policy.

That public policy is to deter police misconduct by applying the exclusionary rule.

You can't deter police misconduct by applying the exclusionary rule to possible mistakes by the legislature.

United States versus Leon allowed a good faith exception to the exclusionary rule where a search which was later found defective was executed and evidence was seized where the officers acted in good faith reliance on the search warrant and that court determined that the standard of reasonableness was an objective standard.

The statute of the sort here where the warrantless entry onto the premises of a closely regulated business is allowed, the statute stands in the place of a warrant, but the Leon court said that where some limitations on the officer's good faith reliance... excuse me, that there were some limitations on the officer's good faith reliance on a search warrant, and Leon listed three examples of those limitations, that when affidavits for a search warrant contain reckless falsities or when a magistrate abandons his neutral role, or when the affidavits do not provide a substantial basis for the existence of probable cause.

Thus this Court recognized some limitations to those search warrants.

Those three factors articulated in Leon state a reasonableness standard, and such a standard could be applied to situations where a statute stands in the place of a warrant.

Unknown Speaker: Mr. Angarola, what do you make of Footnote 8 in Leon dealing with this particular problem?

Mr. Angarola: Footnote 8, dealing with the DeFillippo or the cases of Ubara, Torres?

Your Honor, those cases deal with statutes that provided that there either was no need for probable cause or there was no need for aspects of a search warrant.

Here our situation is distinguishable because we are dealing with a closely regulated type business or a pervasively regulated type business, a category of businesses that this Court has recognized as to allowing statutes to stand in the place of search warrants.

So I think that the situations here are different than the Torres case, which was, of course, a statute that required people traveling from the United States into Puerto Rico to have their luggage searched.

There was no requirement of probable cause in that case, and there was no establishment or need for a warrant.

The legislature there was attempting to enact a provision which would eliminate the need for a search warrant.

It is not in this pervasively regulated businesses.

Therefore it was something improper.

In Ubara, the State of Illinois had a statute which provided for the search of all persons present at a location where a search warrant was executed.

There again, this Court found that because the Illinois legislature in this case was attempting to enact the provision that eliminated probable cause, that those were improper statutes, and those statutes were unconstitutional.

Unknown Speaker: Does your review require us to take a different view of the constitutionality of the statute than the Illinois Supreme Court did?

Mr. Angarola: No, Your Honor, it does not.

The point is that the officers acting in good faith and having good faith reliance on a statute is the significant controlling fact, and the fact whether the statute is constitutional or not is not important to our position here.

In other words, it of course should be considered.

Unknown Speaker: But apparently it is important in distinguishing Footnote 8 in Leon.

That is my confusion, I guess.

Mr. Angarola: Well, as I said, Your Honor, Leon deals with a situation where there was an attempt to eliminate the need of a search warrant in all the cases cited there.

Here, in this instance, because we are discussing these pervasively regulated businesses, closely regulated businesses, an area where this Court has allowed statutes to stand in the place of warrants, I think that those cases are distinguishable.

I think the substantive effect of what this Court did in Ubara and Torres would remain the same.

If this Court were to consider a good faith exception where police officers act in reliance upon a statute, a presumptively valid statute, the result might change, but the substantive holding of those cases would remain the same.

Unknown Speaker: Mr. Angarola, who has the burden of proof of good faith on the part of the officer in relying on the statute?

The state?

Mr. Angarola: The state would have the burden of proving that the officers were acting in good faith, that what would ordinarily happen, Your Honor, is that on a motion to suppress there would be allegations requiring or alleging certain facts, and the state would have the burden of proving that the police officer acted in good faith.

Unknown Speaker: Are there any findings on that issue on this record?

Mr. Angarola: No, Your Honor, there are not.

Unknown Speaker: Then you didn't discharge your burden of proof.

Isn't that the end of the case?

Mr. Angarola: Well, Your Honor, the trial judge in this matter did not make a determination regarding good faith because he felt it did not apply.

The trial court was given instructions from the Illinois appellate court to consider the possible application of the good faith exception to the exclusionary rule.

When the trial court examined those facts, he determined that on the basis of Gates there was not a reason to examine the good faith exception, that it did not apply, so he did not make a determination regarding good faith.

Unknown Speaker: How would you go about demonstrating good faith?

Wouldn't you assert that you would carry your burden simply by showing that the officer was acting pursuant to a statute that was on the books and that had not been stricken down, that had been on the books in Illinois since when, 1933?

Mr. Angarola: This statute or its predecessor, since 1933.

Yes, Your Honor.

Unknown Speaker: So what more would you want to show good faith, that nobody had told him it was unconstitutional?

Mr. Angarola: No, Your Honor, but I think that the objective factors regarding the entry, the identification, all the circumstances involving the warrantless entry here are factors which would go to show the good faith of the police officer.

Unknown Speaker: Well, as I understand it, your opponent takes the position that the search went beyond that authorized by the statute, and you would at least, it seems to me, have to have findings that the search was that which would have been authorized pursuant to this statute, and there is no such finding.

Mr. Angarola: That's correct, Your Honor.

I think the record is confused in that area.

I think when you look at Judge Hogan's ruling it is that he determined that because respondent Lucas did not show books and records at the time that the police officer asked for it, that he could not go on to that second stage, but I think that is incorrect, because I think that when respondent Lucas shows the police officer a yellow pad of paper containing a list of vehicles, that those are the kind of information that the Illinois statute was speaking to, and he could in fact go onto the premises, but there is no specific rule.

I think the ruling is confused in that area.

Unknown Speaker: Did the Illinois Supreme Court speak to that point?

Mr. Angarola: No, it did not.

Unknown Speaker: It rested entirely on the fact that the statute was unconstitutional and therefore the search, even if it was within the scope, was no good.

Mr. Angarola: That's right.

The Illinois Supreme Court did not address itself to the scope of the officer's activities, but we believe that implicit in what the Supreme Court did because it went on to consider the constitutionality is a determination that the police officer was acting in the scope.

In other words, the Illinois Supreme Court could have made a determination that the police officer was not acting within the scope of his authority, but there is, Your Honor, there is no specific holding such as that in the Illinois Supreme Court.

Unknown Speaker: And the Court below had found that he wasn't within his scope, wrongfully, you say, but that's what it had found.

Mr. Angarola: Yes, Your Honor.

Unknown Speaker: How can we find that it was, that it was within the scope then?

Mr. Angarola: Well, Your Honor, because I believe that the facts and circumstances here indicate that the police officer did in fact act within the scope of the authority.

I think the judge's interpretation that he had an obligation to actually see books and records, in the transcript the judge seems to think that there is a need for the respondent Lucas to show the police officer books and records before the police officer could go onto the premises, and I think that's--

Unknown Speaker: Well, it seems silly to me--

Mr. Angarola: --Yes.

Unknown Speaker: --and it may seem silly to you, but surely that is a matter of Illinois law, isn't it?

I mean, Illinois is entitled to have a silly law if it wants.

Mr. Angarola: Illinois is entitled to have a silly law, but Your Honor, I would suggest that that interpretation would give the statute no meaning whatsoever.

That would mean that a respondent or someone in the auto parts business could prevent the second stage, the inspection of the premises for determining the accuracy of the books and records by merely not having the books and records on the premises, and that would mean that the statute would have no meaning.

Unknown Speaker: It would be very silly.

That is not right at all.

All they would have to do, I suppose, is go get a warrant once they found they didn't have the records the statute required, and they also are in violation of the statute by not having the records.

That is not so silly, is it?

Mr. Angarola: Well, Your Honor, in terms of the purpose of the statute, which is to have recordkeeping, and I think that if the statute could be avoided by simply not having books and records there, that that is avoiding--

Unknown Speaker: Well, isn't there some sanction for not having the books and records?

Mr. Angarola: --Pardon me?

Unknown Speaker: Doesn't the statute contain a sanction for not having the required books and records?

Mr. Angarola: Yes, Your Honor, it does.

Unknown Speaker: That is not a silly sanction, is it?

Mr. Angarola: No, no.

No, Your Honor, it is not a silly sanction, but I believe that the purpose and intent of the statute could not be avoided by merely not having books and records, and I also believe, Your Honor, and I submit that that yellow pad of paper is the kind of information the statute speaks of, and when the officer looked at that yellow pad of paper he then had the authority to go onto the premises.

In fact, he didn't do much more than a private citizen would have a right to do under any circumstances.

He went in and identified himself.

He asked if he could go onto the premises.

I am not suggesting that that was found to be consensual because it was not, but he asked to go on.

It certainly wasn't forcible entry.

And under those circumstances he went onto the yard.

Okay?

And I would like to reserve the remaining time for rebuttal.

Argument of Paul J. Larkin, Jr.

Chief Justice Rehnquist: Thank you, Mr. Angarola.

We will hear now from your Mr. Larkin.

Mr. Larkin: Thank you, Mr. Chief Justice, and may it please the Court, at the outset I would like to respond to some questions asked by Justices Scalia and Stevens.

There were no findings made in this case whether or not Detective McNally's conduct was objectively reasonable.

The reason was both the trial court and the Illinois Supreme Court believed they were not allowed to make those types of findings because both courts concluded that the good faith exception that this Court adopted in Leon should not be extended to this context.

So, since they decided the threshold question against the state there was no need or reason for them to go on and make these types of findings, but they wouldn't have to be findings as to the officer's subjective intent.

The factors that go into the determination of whether something is reasonable does include factors such as the length of time the statute has been on the books, the number and types of challenges that have been brought against the statute, the different types of decisions within a particular state, for example, or within a particular--

Unknown Speaker: Mentioning the challenges, Mr. Larkin, if you prevail in this case would a defendant in a case like this ever have any motive to challenge the constitutionality of a statute?

Mr. Larkin: --Yes, he would, Your Honor, because whether or not the good faith exception should be applied in an individual case--

Unknown Speaker: Assuming the facts clearly show good faith on the part of the officer, then he would have no motive to challenge the statute, would he?

Mr. Larkin: --If it was clear that it was objectively reasonable for the officer to be acting in this fashion, there would be less of a likelihood that he would bring a suppression motion.

However--

Unknown Speaker: There would really be no point in it, would there?

Mr. Larkin: --No, because the benefits of bringing a suppression motion, as the Court recognized in Leon, are the termination of the case.

So even if viewed outside the judicial system, it would be clear that a judge should rule in the government's favor.

The defense counsel is not going to be certain of that and he will still bring his motion, but in addition, in statutes like this you have the possibility of challenging the statute in ways that you don't have in a criminal case.

For example, a declaratory judgment proceeding can be brought, and that can be brought early on and before the searches are executed, so it is possible to have the substantive rules of Fourth Amendment law in a case where there is a statute rather than a warrant authorizing the conduct to be clearly defined perhaps even before any search occurs.

So in that case if the decision is clearly settled that it is permissible or not, then you have an entirely different type of calculus that goes into play.

The two substantive... the two central principles that this Court adopted in Leon we believe control this case.

The first is that the purpose of the exclusionary rule is to deter police misconduct, and the second and related one is that the exclusionary rule will not serve that purpose where a police officer acts in an objectively reasonable fashion.

In those circumstances the officer acts as any other officer would, and imposing the remedy of exclusion penalizes the officer and the government without producing any corresponding benefit to the privacy interest protected by the Fourth Amendment.

Now, although the question in this case involves the application of those principles that were adopted in Leon to a slightly different factual situation, we believe those principles are fully controlling here.

That, I believe, is clear when you look at the question from the perspective of the officer attempting to execute the search.

An officer in making the decision whether an arrest or a search is lawful is concerned about the substantive rules defining his conduct, what he is permitted to do and what he is not permitted to do.

He is not as concerned about who authorizes him to take certain actions.

In this respect the officer will be indifferent as to whether it is a magistrate that has authorized him to enter this business or whether it is the legislature that has.

He will--

Unknown Speaker: Mr. Larkin, when would, in your view, the officer's action not be taken in good faith?

Mr. Larkin: --There are--

Unknown Speaker: If there were an unconstitutional statute.

Mr. Larkin: --There are circumstances where a statute is clearly unconstitutional and no reasonable person should believe that any court would rule otherwise.

A specific example, I suppose, might be the statute in the Torres case, but where a legislature has made a reasonable judgment, and the legislature is required to make an independent judgment as to the constitutionality of its statutes, if it is reasonable the purposes served by the exclusionary rule will not be served by suppressing the evidence in that case.

Unknown Speaker: And if there is a single trial court decision in the jurisdiction holding it unconstitutional would that then bind all police officers or would we make an inquiry into whether the officer knew of the trial court decision?

Or do we wait until it is appealed, or what?

How do you apply that?

Mr. Larkin: There are several different responses that I can give to that question.

First, in terms of whether the officer knows about it, I think the officer should be deemed to know of a decision from the day it comes down.

It would be difficult otherwise to define any particular rule.

I think it would be arbitrary to say that the officer is entitled to 30 days' notice before his actions are unlawful or otherwise.

But whether or not one particular decision should eliminate any argument that the state could make that the good faith exception should be applicable may vary from case to case.

There are circumstances where there may be a variety of decisions that have addressed this subject.

If several courts have invalidated the statute and several courts have upheld the statute it may be reasonable in that context.

This is the same type of inquiry the Court will have to make in the Harlow qualified immunity area just under a different heading whether a particular constitutional right is clearly established.

So that type of factual inquiry can vary, but here, in this case the determination of unconstitutionality was made not until after the search was conducted, so this is an easy case for the application of the good faith--

Unknown Speaker: I suppose that there could be developments in constitutional law that should put people on notice that a particular state statute is a very questionable piece of legislation.

Mr. Larkin: --That's correct, Your Honor.

Unknown Speaker: And if there had been, say, a decision of the Seventh Circuit Court of Appeals striking down a very similar statute in Wisconsin I would think maybe the police ought to take notice of that.

Mr. Larkin: Yes, Your Honor, that sort of circumstance should be factored into the second half of the inquiry that would have to be followed in this case, that is, whether this police officer acted in an objectively reasonable manner, but the threshold question of whether Leon should at all be applied in this circumstance we believe should be resolved in favor of the state.

Unknown Speaker: And so you think we should just disavow Footnote 8 in Leon, or do you think we have to--

Mr. Larkin: No, Your Honor.

I think what the Court said in Leon was that in undertaking the good faith exception, in adopting the good faith exception to the exclusionary rule the courts were adding a second step into the process of deciding whether evidence should be suppressed.

Under the Court's decisions in the Torres case, for example, since the statute authorized search on less than probable cause and was found invalid the substantive Fourth Amendment rule in that case is that that type of search cannot go forward, but if the good faith exception is applied to statutes, as we submit it should, the next inquiry is whether or not the police officer acted reasonably in this particular case.

Unknown Speaker: --So your distinction is between a statute which, a Colonnada type statute which authorizes inspection and search of a heavily regulated business on the one hand and a statute which simply says, from now on you can search without probable cause?

Mr. Larkin: Any statute that said the latter, Your Honor, should be held unconstitutional by any court.

But I would not say that our argument is limited just to administrative search inspections.

It would be easier, I believe, in an individual case to establish good faith where the statute was one that fit into the administrative search exception, but our argument would allow the prosecution to argue that reliance on any type of statute would be valid.

Unknown Speaker: What is your construction of Footnote 8?

Mr. Larkin: As we construe Footnote 8 in Leon, the Court there said that its substantive Fourth Amendment rulings in its earlier cases were not affected by adoption of the good faith exception, but that the good faith exception would require the Courts if this good faith were applied to a statutory search to make the inquiry whether a particular search was reasonable.

Unknown Speaker: Well, certainly none of the cited cases in Footnote 8 concerned good faith.

Mr. Larkin: It is because they all preceded this Court's decision in Leon and therefore even including the DeFillippo case, the Court didn't have before it the question whether or not if a good faith exception should be adopted it should be applied outside the context of a search warrant in the context of a search authorized by a statute.

Unknown Speaker: No, but at the time that footnote was written the subject of the good faith exception had been before the Court in various ways for two or three years at least by 1983.

We hadn't actually decided until Leon, but it had been raised several times, but not squarely presented and therefore decided, so it wasn't as though it wasn't something we would think about.

Mr. Larkin: No, I wasn't suggesting the Court wasn't aware of this type of problem, but it is just that until the Court decided Leon the Court didn't have the opportunity to decide how this type of exception should be applied outside the context of a search warrant.

Unknown Speaker: Going back for a minute to the Torres case, were you saying that is a case where it was so obvious that the statute was unconstitutional that the police officer should have known it?

Mr. Larkin: I think that would be a case--

Unknown Speaker: Even though the Puerto Rico Supreme Court had held it constitutional?

Mr. Larkin: --As I remember the facts of that case there probably wasn't a majority to hold it unconstitutional, even though there was some indication that it probably would have been held unconstitutional because there was a majority of the judges sitting on the case.

Unknown Speaker: I see.

Mr. Larkin: So I think it is a case where the good faith exception would not have applied, but I think this is a case where the good faith exception should reasonably be applied.

Unknown Speaker: You are giving us a lot more litigation in all of this, aren't you?

I mean, we are going to have to decide in every case not only whether the statute is unconstitutional now but how badly unconstitutional is it.

Is it so badly unconstitutional that everybody should know it?

I mean, the first call is hard enough.

We are going to have to make a double one all the time.

Mr. Larkin: Well, I am not sure what number of cases... how great that number of cases might be.

The same sort of problem, for example, is going to arise in the question of qualified immunity, and so if a police officer conducts a search under a statute and is thereafter sued for damages, the same sort of problem would arise.

Unknown Speaker: I understand.

I am not particularly happy about that.

You are just saying let's double it.

Mr. Larkin: It is not necessarily double it.

It is a different type of inquiry, but I don't know if it is necessarily going to increase the burdens on the courts, but even if it does, I think there are reasonable benefits to the prosecution from allowing this type of inquiry.

Argument of Miriam F. Miquelon

Chief Justice Rehnquist: Thank you, Mr. Larkin.

We will hear now from you, Ms. Miquelon.

Mr. Miquelon: Mr. Chief Justice, and may it please the Court, police officers entered the premises of Action Iron and Metal for the ostensible purpose of executing a search pursuant to a procedural statute which by its own terms directly authorized a search under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment.

The officer had no search warrant and had no probable cause.

It was at the point of this initial unlawful intrusion that the police officer exceeded the scope of the procedural statute and engaged in the sort of widespread administrative abuses commented upon by the Federal District Court in declaring the statute unconstitutional.

The statute required this officer to engage in a two-step process, first, to request the records from the licensee, and then to engage in a verification limited specifically to the verification of the records.

The trial court in this case explicitly held that the officer would have been within his statutory authority had he followed the two-step process.

However, the trial court stated,

"Now, he didn't do that. "

Instead, the officer said to respondent Lucas, can I go in and just look around?

The statute did not authorize the officer to do this, and he did not have a warrant or probable cause.

Mr. Lucas replied, under the duress of the statute, sure.

The trial court and the Illinois Supreme Court both rejected respondent's contention that this was a good faith search.

Now, the respondent... and let me explain--

Unknown Speaker: Did the Illinois Supreme Court reject the contention that he went beyond the scope of... that he was within the scope of the search that the statute allowed?

The Supreme Court of Illinois didn't address that at all.

Mr. Miquelon: --I think they did, Your Honor, and let me explain how they did it.

You must understand that the petitioner in this case made a different argument in the Illinois Supreme Court in their briefs when they argued good faith to the Court at that time.

They argued that it was good faith because it was a consent search.

That was the argument they made in their brief.

Indeed, when they filed their petition for writ of certiorari in this Court they originally started with the argument that it was a consent search.

Unknown Speaker: I am not asking whether the Supreme Court of Illinois rejected the notion that it was a consent search.

That is not it.

It is whether, assuming that it wasn't a consent search, did it nonetheless go beyond the scope of what the statute would have allowed without consent.

Mr. Miquelon: Your Honor, they admitted in the Supreme Court that Judge Hogan determined it went beyond the scope of the statute.

Unknown Speaker: I am not asking whether they admitted that the lower court had decided it.

I am asking whether the Supreme Court of Illinois said anything about it.

Did the Supreme Court of Illinois decide that point?

Mr. Miquelon: Well, having conceded it in the Supreme Court the Supreme Court didn't reverse on that point.

Unknown Speaker: They didn't say anything about that point.

They didn't find it necessary to reach it, right?

Mr. Miquelon: Well, yes, because the state said that it was on an independent basis that they could do this, which was consent, and in response to that the Supreme Court said, well, there was no consent, and that is how they framed their argument there.

The Court... and I would say former Chief Justice Burger stated in Michigan versus DeFillippo a clear proponent of the good faith exception to the exclusionary rule, and again, Justice White in the Leon decision in Footnote 8 stated that the exclusionary rule requests suppression of evidence where obtained pursuant to a statute not yet declared unconstitutional which purports to authorize a search that doesn't satisfy the traditional requirements of a warranted probable cause.

Unknown Speaker: Now, both of those cases draw the distinction.

Does either of them give a reason for the distinction?

Mr. Miquelon: Well, I think you have to--

Unknown Speaker: They note that we allow this good faith exception where you have a substantive statute that is later found unconstitutional and the search is in order to enforce the substantive statute you can have a good faith exception, they say, but that is not the same thing as a statute which is not a substantive statute but a search statute.

Now, that is a nice distinction.

Did they give any reason for the distinction?

Mr. Miquelon: --Well, I think they do, and I think DeFillippo does.

Unknown Speaker: Well, what is it?

Mr. Miquelon: In DeFillippo the Court specifically states that a procedural search statute, unlike a substantive criminal statute, directly authorizes a search that is in violation of the Constitution, whereas a substantive criminal statute defines some conduct and the officer--

Unknown Speaker: That is another distinction.

That is not a reason why in the one case it makes sense to apply a good faith exclusionary rule, a good faith exception to the exclusionary rule, and the other one there isn't.

You are just giving me another distinction.

Mr. Miquelon: --Well, I think then that--

Unknown Speaker: But what is the reason why that distinction should have some bearing upon whether you allow a good faith exception?

Mr. Miquelon: --Because you are talking about a situation where the sovereign has acted beyond its lawful discretion.

It has in essence abrogated the requirements of a warrant and probable cause.

It has abrogated the requirements of the Fourth Amendment completely.

Unknown Speaker: It has done so in the other case, too, where it has a substantive statute that is beyond its power, and it is having its law officers enforce a statute that it has no authority to enforce, a substantive law.

Mr. Miquelon: I would respectfully submit, Your Honor, that that was not the analysis made by the Court in DeFillippo.

The DeFillippo Court specifically found that it was by virtue of completely abrogating the operation of a constitutional... the Amendment, the Fourth Amendment, and that a substantive criminal statute does not do that.

Unknown Speaker: That is a distinction.

What I am asking, what I am trying to find is a reason why that distinction should make a difference as to whether a good faith exception should be applied.

It is just like saying one is black and the other one is blue.

Well, that is fine, but why should that have any bearing upon whether you allow a good faith exception?

Mr. Miquelon: Well, in my view, I mean, I feel that where the sovereign abrogates the Bill of Rights and the Constitution, I agree that the evidence should be excluded.

Unknown Speaker: It abrogates the Constitution every time it passes an unconstitutional law, whether it is substantively unconstitutional or an unconstitutional search law.

Both of them are bad.

Both of them are wicked, if you will, but why does that have any bearing upon whether you allow a good faith exception?

Mr. Miquelon: Because this Court says that the search and the arrest based on a substantive unconstitutional statute in and of themselves are not unconstitutional because the officer has probable cause based on the statute to make the arrest and then the search is incident to the lawful arrest.

Unknown Speaker: He has probable cause because the statute seems to him to be constitutional, even though it really isn't.

You can say the same in the other situation where he is proceeding under a statute that authorizes a search.

There is probable cause to believe that is constitutional, too.

Is there something in the function of the good faith exception that makes it more dangerous to apply it in one situation than in the other?

That is what I am looking for.

Mr. Miquelon: I think there is another point.

When you abrogate the probable cause and warrant requirements, every time a statute is conducted... a search is conducted under the statute it is a violation of the Constitution, which leads to a widespread and continuous violation of the statute.

It is not the same thing where a magistrate makes a bad judgment call on a probable cause determination under a warrant, but every time in a circumstance where the unconstitutional statutory search is repeated there is a violation, and indeed in this case the Federal District Court held evidentiary hearings where it determined that the administrative abuses under this statute were so widespread that it says while administrative abuses aren't the only logic to declare a statute unconstitutional, they are so widespread and so pervasive here that it is a major point in declaring the statute unconstitutional.

Unknown Speaker: Ms. Miquelon, is it your view then that there is more to fear from a legislature's departure from Fourth Amendment requirements than a magistrate's?

Mr. Miquelon: Well, yes.

Unknown Speaker: That is your position?

Mr. Miquelon: Yes, it is.

Unknown Speaker: Do you think that separation of powers concerns enter into how we should treat the exclusionary rule vis-a-vis a legislative body's departure from the Fourth Amendment as compared to a magistrate's?

Mr. Miquelon: Well, I think that there is a separation of powers issue, and in our brief we sort of quote all the way back to Alexander Hamilton, who points out that very fact.

Unknown Speaker: Well, should a court be more reluctant to apply the exclusionary rule when the legislative body has departed than when one of its own magistrates has departed from the Fourth Amendment--

Mr. Miquelon: I think it should be more willing to apply the exclusionary rule because the Court has put the legislature on notice as to what constitutional yardstick is required when you abrogate the Fourth Amendment and you want to substitute your own regulatory scheme.

We are going to permit you to do that, says this Court, but only when you do it in a constitutional fashion and you reach a constitutional destination, and if you don't do that then the sovereign has acted beyond its lawful discretion.

The sovereign has no right to empower its agents to act in--

Unknown Speaker: --Well, of course, it has the right to make its own determination initially on constitutionality.

Mr. Miquelon: --That's true, and that was done in this case.

The Illinois Supreme Court and the trial court determined the statute was unconstitutional.

I would also say that the good faith exception to the exclusionary rule as articulated by this Court in the Leon decision is intrinsically tied to the warrant and probable cause requirements.

It assumes in the first instance that a magistrate first reviews the affidavit containing the officer's statement of probable cause, makes a probable cause determination, and then issues the warrant, and as a caveat to that, the Court says, you must act within the confines of the warrant, which in this case the officer didn't even act within the confines of the regulatory scheme.

So by its own definition the good faith exclusion doesn't really extend beyond the warrant context.

Unknown Speaker: Ms. Miquelon, what if a state enacted a statute providing that the following circumstances shall constitute exigent circumstances for purposes of making arrests or searching, and then defined a number of situations which, you know, probably a lot of them would qualify as exigent circumstances under decided cases, but there was one in there that a court held this just doesn't qualify as an exigent circumstance under the Fourth Amendment.

Now, do you think the good faith rule would be out with that kind of a statute?

Mr. Miquelon: Well, I think if it directly contravenes the Fourth Amendment, I think the Court has held that the exclusionary rule would suppress the evidence, yes.

As the law stands currently today the exclusionary rule would apply, and also the notion of exigent circumstances, once again, Your Honor, particularly in the search context, is again tied directly into the notion of the warrant and probable cause requirement.

You may only search without a warrant when you have exigent circumstances and probable cause.

Unknown Speaker: Yes, but do you think it is beyond the capacity of Congress or the Illinois legislature to say these shall be exigent circumstances?

Do you think courts should pay no attention to a statute like that?

Mr. Miquelon: No, and in fact this... if this Court says that there is a constitutional roadmap to follow when you are defining exigent circumstances, and you have followed our roadmap as you did in... you provided Colonnada and Biswell and Donovan, then if the legislature follows that roadmap and reaches their constitutional destination there is no problem, but it is when they fail to do that that the Court cannot sanction the sovereign acting beyond its lawful discretion.

Unknown Speaker: So that even though this Court has recognized a class of situations, heavily regulated, licensed businesses which can be examined and perhaps searched without a warrant, if a legislature makes the slightest mistake under our cases in saying this is a heavily regulated business, the good faith rule doesn't apply?

Mr. Miquelon: Well, when we say the slightest mistake, I think that that is a question of interpretation.

In this case both the Federal District Court, the trial court, and the Illinois Supreme Court did not find there was a slight mistake.

Unknown Speaker: Well, but under your analysis I understood it was kind of a black and white thing.

It doesn't depend on the law being slightly unconstitutional or very unconstitutional.

If it is unconstitutional, period, the good faith exception can't be applied.

Isn't that correct?

Mr. Miquelon: I have to say that is true, Your Honor, because to the... now, that doesn't mean in your example that we have to find the whole statute unconstitutional.

We can say this portion of the statute is unconstitutional.

You can continue to operate under the rest of the statute.

And then all the legislature has to do, Mr. Justice, is to reenact that portion of the statute and make it constitutional, and then the issue disappears.

I would reemphasize that there can be no objective good faith reliance on a procedural statute which is crafted by the legislature to violate the Fourth Amendment.

And when a police officer acts beyond the limited authority of the regulatory inspection scheme on his frolic and detour he is relying on no statute whatsoever, and the issue of good faith is inapposite.

The officer is merely acting indiscriminately, and that perhaps is the best reason why the Court should not reach the constitutional issue in this case, because this officer was indeed acting indiscriminately.

He was not acting within good faith because he did not comply with the requirements even of the unconstitutional regulatory scheme.

Also, again, I would point out that the good faith exception to the exclusionary rule has only been defined within the context of a warrant.

For the Court to extend it beyond the context of a warrant would, I think, take it out of the context in which it is currently defined.

And therefore I would conclude by stating to the Court--

Unknown Speaker: Excuse me.

It has also been applied in the context of a substantive statute where the substantive statute under which the officer is operating is found to be unconstitutional.

Mr. Miquelon: --Well, in DeFillippo the Court did not apply this good faith exception to the exclusionary rule even to a substantive statute because this good faith exception is defined in terms of the warrant requirement.

Unknown Speaker: What difference would it make?

You mean so long as the mistake about the statute is made by a magistrate before it is made by the officer it is all right even though the underlying mistake is not the mistake of the magistrate but of the legislature?

Mr. Miquelon: No, I don't... once again, I don't agree with that respectfully, Justice Scalia.

I believe that the... what the Court has said is that the officer under those circumstances has done everything that he has to do under the law.

He has applied for a warrant.

He has filed an affidavit for probable cause.

But in the current--

Unknown Speaker: And the statute is unconstitutional.

That is the only thing wrong with it, right?

The statute under which he is acting is unconstitutional.

Mr. Miquelon: --That is not the only thing wrong with it.

It directly authorizes a search in violation of the Fourth Amendment.

Unknown Speaker: Not this one, the other situation, the DeFillippo type situation.

Mr. Miquelon: Well, that's correct.

But again, this results in widespread abuses whereas that situation I think the Court recognizes that a magistrate may make an error in judgment as to a probable cause determination but that it the warrant is still required, the exercise of determining probable cause is still required, and in our circumstance we have abrogated those requirements.

You are in essence saying that if the state enacts an unconstitutional statute and authorizes a warrantless search which this Court has determined is per se unreasonable, the evidence must be excluded when it violates the Fourth Amendment.

Thank you very much, Your Honors.

Rebuttal of Michael J. Angarola

Chief Justice Rehnquist: Thank you, Ms. Miquelon.

Mr. Angarola, do you have anything more?

You have four minutes.

Mr. Angarola: The legislature's judgment should be entitled to deference just as a judge's judgment regarding the execution of search warrants should be given deference.

There is no reason that this Court should desire a public policy that would require police to be timid in their execution of search warrants.

This Court, of course, has dealt with a public policy called the exclusionary rule for some time.

The question is is whether that public policy should be such so that police officers acting in good faith reliance upon the existence of a statute should have evidence that is seized suppressed in court, and the question is whether that public policy should be greater than a public policy of, for example, requiring police officers to enforce statutes as they know them to be.

Trial courts are capable of answering questions which arise regarding good faith reliance on statutes.

Such questions as whether the police officer's conduct was objectively reasonable, or what information regarding judicial determinations of statutes has been communicated to a reasonably well trained police officer, or whether a police officer has exceeded the scope of his authority granted by the statute, or whether the statute--

Unknown Speaker: May I ask this question?

Mr. Angarola: --Yes, Your Honor.

Unknown Speaker: What specifically did the trial court say with respect to the good faith of the police officer, if anything?

Mr. Angarola: He said that he did not feel that a determination regarding good faith was appropriate because he felt that there was no need to determine whether the officer was acting in good faith.

Unknown Speaker: So he made no express finding either way.

Mr. Angarola: That's correct.

Yes, Your Honor.

No finding whatsoever.

Citizens have greater protections against constitutionally defective statutes than against detective warrants.

If a statute is enacted that may be unconstitutional, an injunction can be obtained.

If criminal charges occur there can be judicial review in the form of a motion to suppress, and that judicial review should be the same, I would think, to respond to Justice O'Connor's question, whether it is a motion to suppress that is filed pursuant to a search that occurred regarding a statute or whether that is regarding the execution of a search warrant.

Citizens can express their views to legislatures.

Proposed legislation can be reviewed by legislative bodies themselves.

They can be reviewed by Bar Association committees.

They can be viewed by the Governor of the state, and in Illinois the Governor has the authority to mandatorily veto statutes.

Thus there is a significant amount of degree of review of proposed legislation.

So citizens in fact have more avenue of redress and more avenues to express their views regarding statutes than they do regarding the execution of a search warrant.

Thus we would ask this Court to reverse the opinion of the Illinois Supreme Court.

Chief Justice Rehnquist: Thank you, Mr. Angarola.

The case is submitted.